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Jharkhand High Court · body

2008 DIGILAW 1375 (JHR)

Dhrupdeo Tiwari v. State of Jharkhand

2008-12-02

AMARESHWAR SAHAY

body2008
Order Heard the parties. 2. The petitioners have challenged the order dated 25.11.2006 passed by the Additional District Judge, Fast Track Court-1, Bokaro in S.T. No. 209 of 1999, whereby the prayer for releasing the forfeited bail amount has been rejected. 3. The relevant facts, in short, are that these two petitioners stood as bailers of the accused Navin Kumar Tiwari and Mithilesh Kumar in connection with Sessions Trial No. 209/1999. On 18.3.2006, the bail bonds of the accused persons were cancelled and warrant of arrest as well as process under Sections 82-83 Cr.P.C. was issued. Thereafter, on 19.4.2006 the bail amount of the sureties were ordered to be forfeited and an order for issuance of distress warrant was also passed. It further appears that both the aforesaid accused persons surrendered in the Court on 7.7.2006 and 28.7.2006 respectively. 4. The petitioners are challenging the order issuing forfeiture of bail amounts in this writ application. 5. It is submitted that Section 446 of the Code of Criminal Procedure provides that before an order for forfeiture of bail amount is passed, notice to show cause has to be given to the bailers/sureties. This mandatory requirement of giving notice to the bailers was not complied with in the present case and, therefore, the order forfeiting the bail amount is illegal and unsustainable. 6. From the impugned order, I find that the learned trial court has refused the prayer of the petitioners for release of the forfeited bail amount on the ground that in compliance of the order of the Court the employer of the petitioners has already deducted the salary of the petitioners to the extent of their amount of sureties and, accordingly, the said forfeited amount of bond has already been deposited in Najarat of the Civil Court and once the forfeited amount is realized and deposited, that cannot be released. The trial court further held that once the payment has already been released and deposited in the Government Treasury the same cannot be ordered to be released by him. 7. On the other hand, the learned counsel for the State submitted that Section 449 Cr.P.C. provides that against any order passed under Section 446 Cr.P.C. an appeal lies and, therefore, the petitioners have the efficacious and alternative remedy of appeal. 8. 7. On the other hand, the learned counsel for the State submitted that Section 449 Cr.P.C. provides that against any order passed under Section 446 Cr.P.C. an appeal lies and, therefore, the petitioners have the efficacious and alternative remedy of appeal. 8. No doubt, the appeal is provided under Section 449 Cr.P.C. against an order passed under Section 446 but it appears that this writ petition was filed in the month of February 2007 and, thereafter, more than one and half years have William already elapsed and, therefore, at this stage if the petitioner is asked to approach the appellate forum on the ground of alternative remedy of appeal, in my view, it would not be justified. This Court in exercise of writ jurisdiction under Article 227 of the Constitution of India can revise any order passed by the court subordinate to it when it is found that the order under challenge is apparently illegal. In glaring cases, alternative remedy of appeal cannot come in the way of the exercise of the supervisory power by this Court. 9. In the present case, it is not disputed that before the order for forfeiture of . the amount of bond was passed or before the distress warrant was issued against the sureties, no notice of any kind was issued to the bailers, i.e. the petitioners. In such a situation, the order of forfeiture of the amount of bond as well as all subsequent orders with regard to issuance of distress warrant etc. cannot be sustained since it was passed in ultra violation of the mandatory provision of Section 446 Cr.P.C. and against the principles of natural justice. Consequently, this application is allowed and the impugned order dated 25.11.2006 rejecting the prayer of the- petitioners for release of the forfeited amount of bond as well as all the orders passed by the trial court regarding forfeiture of the bail amount as well as issuance of distress warrant of arrest are hereby quashed and the Court below is hereby directed to release the forfeited amount of bail to the bailers without any further delay.